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ELCAllowedRuling in Application dated 15th June, 2021 (Kisii ELC suit; related suit KISII CMC ELC NO. 145 of 2019)· [2021] KEELC 529 (KLR)

Charles Onserio Obiri v Makori Samuel [2021] KEELC 529 (KLR)

Environment and Land Court
1 December 2021
JOJ.M ONYANGO
1,601 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kisii court ruled that two land disputes over the same parcel must be heard together to avoid conflicting decisions.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kisii on an amended application dated 15th June 2021 by the Defendant/Applicant seeking transfer of the file in Kisii CMC ELC No. 145 of 2019 from the Chief Magistrate's Court to the ELC so that it could be heard together with the instant suit concerning land parcel L.R No. SOUTH MUGIRANGO/BOSINANGE/438. The Applicant deponed that the magistrate court suit relates to parcels 6037, 6038, 6050 and 6051, all subdivisions of parcel 438 which is the subject of the instant suit, and that consolidation would avoid conflicting decisions. The Respondent opposed via Grounds of Opposition, arguing the causes of action were different and consolidation would be cumbersome. The court framed a single issue: whether the transfer was warranted. Applying section 18 of the Civil Procedure Act and the consolidation principles restated in Stumberg v Potgeiter, Benson G. Mutahi and DPP v Mbuvi Gideon Sonko, the court found that both suits revolve around ownership of parcel 438 or portions thereof; the Respondent seeks eviction from subdivision 6050 while the Applicant claims adverse possession of portions of 438 since 1970. The reliefs arose from the same transaction and no prejudice to the Respondent was demonstrated. The court allowed the application, ordered transfer of the subordinate court file for hearing with the instant suit, designated the ELC file as the lead file, left party designation to directions upon consolidation, and ordered costs in the cause.

Key legal issues

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Whether the subordinate court case should be transferred to the ELC for consolidation with the instant suit

Holding

The application was granted because both suits raise a common question of fact and law - ownership of SOUTH MUGIRANGO/BOSINANGE/438 and its subdivisions - the reliefs arise from the same transaction, and no prejudice to the Respondent was demonstrated.

Reasoning

The court applied section 18 of the Civil Procedure Act and the settled principles in Stumberg v Potgeiter, Benson G. Mutahi and the DPP v Sonko decisions: common questions of law or fact, reliefs arising from the same transaction, and absence of prejudice or undue advantage. Here both suits concern title and occupation of portions of parcel 438; the magistrate suit seeks eviction from a subdivision while the ELC suit seeks adverse possession of portions of the parent parcel. No prejudice was shown, so transfer and consolidation served the interests of justice and judicial efficiency.

p. 3

Legal principles established

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  • The Court with jurisdiction to transfer a suit from or to a subordinate court is the High Court or courts of similar status
  • Consolidation is warranted where there are common questions of law or fact whose disposal together is desirable

Court orders

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  1. 1.The court file for KISII CMC ELC NO.145 OF 2019 be transferred to this court for hearing and determination together with the instant suit
  2. 2.This file shall be the lead file for purposes of filing any further pleadings and recording of proceedings
  3. 3.The issue of how the parties will be designated upon consolidation shall be subject of the directions taken by this Court once consolidation is done
  4. 4.Costs shall be in the cause

Authorities

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Legislation

  • Civil Procedure Actsections 17 and 18
  • Civil Procedure Rules

Cases cited (4)

  • Aberdare Investments v Bernard Wachira & 5 others
  • Stumberg and another vs Potgeiter
    1970 E.A. 323
  • Benson G. Mutahi v Raphael Gichovi Munene Kabutu & 4 others
    [2014] eKLR
  • Director of Public Prosecution v Mbuvi Gideon Sonko; Ethics and Anti-Corruption Commission & 4 others (Interested Parties)
    [2021] eKLR
Jurisdiction invoked
Section 18 of the Civil Procedure Act (power of the High Court to withdraw and transfer cases from subordinate courts)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Charles Onserio Obiri v Makori Samuel [2021] KEELC 529 (KLR)", Case Analysis (2021). Ruling in Application dated 15th June, 2021 (Kisii ELC suit; related suit KISII CMC ELC NO. 145 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/529/eng@2021-12-01

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.